Since 2005, Canada and the U.S. have managed the flow of refugees at their shared land border crossings through the Safe Third Country Agreement.
Under the agreement, refugee claimants are required to seek protection of the first country they arrived in.
But there are some exceptions to the agreement that allow refugee claimants who arrived in the U.S. first to cross the border to Canada and make their claim here.
The exceptions include:
• A family member living in Canada who is a Canadian citizen, permanent resident, protected person or successful refugee claimant. A qualifying family member includes: spouse or common-law partner, legal guardian, child, father or mother, brother or sister, grandfather or grandmother, uncle or aunt, nephew or niece, grandchild;
• Unaccompanied minors under age 18 who are unmarried with no parent or legal guardian in Canada or the U.S.;
• Holders of certain documents, including a valid Canadian visa, valid work permit, valid study permit, a travel document for permanent residents or refugees;
• A national of a country, such as Mexico, where visas are not required to enter Canada but are required to enter the U.S.;
• A public interest exception for those who have been charged with or convicted of an offence that could subject them to the death penalty in the U.S. or in a third country. A refugee claimant is ineligible, however if he or she has been found inadmissible in Canada on the grounds of security, for violating human or international rights, or for serious crimes, or if the government determines the person is a danger to the public.
A large proportion of refugee claimants entering Canada from the U.S. are attempting to use the family member exception to the Safe Third Country Agreement.
Making a successful refugee claim is a two-step process in Canada.
The first step, which occurs at a border entry point such as the Peace Bridge in Fort Erie, simply allows the asylum seeker into Canada to then make the actual refugee claim, which must be submitted within 15 days.
A refugee claimant arriving at the Peace Bridge will be interviewed and screened by agents from the Canada Border Services Agency (CBSA) to determine if the asylum seekers meet one of the exceptions to the agreement. If so, they are allowed entry. No determination is made at that time, however, about the validity of the claim.
It’s the second step that determines the ultimate fate of the asylum seeker. Usually within 60 days — although the surge in cases recently is causing a number of postponements — the Immigration and Refugee Board of Canada (IRB) will hear the merits of the claim and make a decision.
A refugee is someone who is outside their home country or the country they normally live in and is unable to return because of a well-founded fear of persecution based on race, religion, political opinion, nationality, or membership in a social group, such as women or people of a particular sexual orientation.
If returned to that country, these people risk the danger of torture, risk to their life, or risk cruel and unusual treatment or punishment.
Buffalo’s Vive Center houses asylum seekers from across the U.S. and the world. Almost all of Vive’s clients are attempting to reach Canada.
Vive will provide legal advice to its clients and help them assemble any paperwork needed for the first step in entering Canada.
Vive will submit the names of asylum seekers to CBSA officials at the Peace Bridge so they can be scheduled for an appointment.
It used to take two or three days to get an appointment. Now, it’s up to four weeks.
Each day, Vive posts the names of the people who have an appointment at the Peace Bridge the next day, and Vive will arrange transportation for them to the CBSA office.
But that’s the extent of the centre’s services.
“There’s this rumour going around that if you go to Vive, they can get you into Canada, which is false to begin with,” said Mariah Walker, Vive’s Canadian services manager. “We don’t have any influence at the border.”
Asylum seekers who arrive first in the U.S. but then want to make their refugee claim in Canada can face a difficult decision.
Those who show up at an official border crossing, such as the Peace Bridge, but don’t meet one of the exceptions to the agreement will be immediately returned to the U.S.
Back in the U.S., they can be detained and subject to deportation.
Officials at Vive say it’s now customary for single males and the male heads of families to be detained at the federal detention facility in Batavia, N.Y. if they are returned from the border crossing at the Peace Bridge. Women and children are frequently dropped off by U.S. border officials at the Vive Center and the women are fitted with a GPS-tracking ankle monitor.
What’s worse, those who are turned away at a border crossing because they don’t meet one of the exceptions can never make another refugee claim in Canada and they are barred from returning to Canada without authorization for one year.
Those who are found ineligible at the border for other reasons, such as a previous failed claim or inadmissibility because of serious criminal issues, can face immediate deportation to their country of origin and could be held in immigration detention.
Asylum seekers who get past the first step at the border then have to show through their claim that they face persecution in their country of origin. Those who have their claim denied following a hearing will then face deportation to their country of origin, not the U.S.
The unexpected election of U.S. President Donald Trump and his early attempts to build walls and restrict travel from certain countries have made many people who have uncertain status in the U.S. nervous, even those from countries not identified by the proposed ban.
Some of these people have resided in the U.S. for years after their work visas or travel visas expired and now worry they could be targets for deportation.
Many of them are now looking to enter Canada as refugee claimants.
Those who have been living in the U.S. for several years outside their country of origin may have a difficult time convincing the IRB they face persecution in their home country.
According to an information primer put out by the Canadian Council for Refugees, the following factors could have a negative impact on a refugee claim:
Lengthy residence in the U.S. without making a claim for asylum;
A delay in making a refugee claim in the U.S.;
Abandoning a refugee claim made in the U.S.;
A refused refugee claim in the U.S.;
A successful refugee claim in the U.S.;
A delay in making a refugee claim in Canada.
Which brings us to the cases of asylum seekers who have to chosen to enter Canada at the so-called “irregular” border crossings at places such as Emerson, Man. and Lacolle, Que.
This winter, Canadians became familiar with images of families walking across snowy fields in bone-numbing cold to enter Canada at unguarded border points.
For these people, it could be a tremendous gamble.
By choosing this route, they get past the first step in the two-step process and avoid being returned directly to the U.S.
They will, however, still be screened and assessed by CBSA agents once they’ve been identified.
But if these people don’t meet any of the exceptions to the agreement or their refugee claim is denied, they’ll be deported back to their country of origin, not the U.S.